Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Bilanenko v Commissioner of Police [2022] NSWCATAD 76
.
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Source
Original judgment source is linked above.
Catchwords
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Bilanenko v Commissioner of Police [2022] NSWCATAD 76.
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cooper v Commissioner of Police [2022] NSWCATAD 195
Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50
Director-General, Transport New South Wales
v AIC (GD) [2011] NSWADT AP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
EHB v Commissioner of Police [2021] NSWCATAP 63
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Masterson v Commissioner of Police [2017] NSWCATAP 206
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Thomas v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 202
Vaccarella v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 145
Judgment (14 paragraphs)
[1]
reasons for decision
The applicant Mr David Darmali applied to this tribunal on 29 November 2022 for review of a decision by the respondent Commissioner to refuse his application for a category ABG firearms licence on public interest grounds.
The applicant had first been issued with a category ABGH licence on 1 September 1998, which was reissued in 1999 and 2004. On 4 May 2009 his licence expired, and on 15 June 2009 police informed him that his firearms would be seized as he was no longer authorized to possess them. On 2 September 2009, police issued the applicant with a warning for possession of firearms while unauthorized. At the time, he had reportedly been in the process of surrendering to a gun dealer, Mr Dave Crittenden, the firearms that he had previously been informed in June would be seized.
The applicant had been the subject of a number of reports from former female partners regarding domestic disputes over a 10-year period between 2010 and 2019. Those reports had resulted in two criminal charges and six apprehended violence orders (AVOs), all of which had been either dismissed, expired or revoked.
There had also been a report from a social worker at a child support agency that during a conversation with the applicant he had said he wanted to put a bullet through his head (exhibit R1, p 38). That led to police requiring a report from a psychiatrist or psychologist regarding his fitness to continue to have access to firearms (id., 166 - 167). A report from Mr Carl Nielsen, psychologist, on 28 September 2010 expressed the view that his psychological condition would not impact on his ability to exercise control for the use of firearms. He had the ability to exercise willpower in order to control his physical actions in accordance with rational judgment. He did not put public safety or himself at risk if in possession of a firearm. He was not currently taking any medication (id., 168).
On 5 April 2019, the applicant's category ABGH licence was automatically revoked by reason of his being subject to an AVO as from 2 April 2019. On 22 May 2020, he applied for a category ABG licence for the stated reason of sport/target shooting, recreational hunting/vermin control and firearms collection. (Id., 126 - 132). On 7 December 2020 his application was refused (id., 158 - 159). He applied for an internal review of the refusal decision, but no review was undertaken. He was therefore entitled to seek a review in this tribunal by reason of s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADT Act) and did so on 29 November 2022. The matter came on for hearing on 2 May 2023 and was adjourned part heard to 10 July 2023. The respondent presented a case based on both whether the applicant is a fit and proper person to hold a licence and whether it would be contrary to the public interest for him to do so.
[2]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a license must not be issued unless "the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace".
Section 11(7) states that "Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest".
The issues in the present application are thus whether the applicant is a fit and proper person to possess firearms without danger to public safety or to the peace, and whether the issue of a licence to him would be contrary to the public interest.
[3]
The evidence
The respondent adduced no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibits R1 and R2), and on cross-examination of the applicant.
[4]
Mr David Darmali (applicant)
At the hearing the applicant adopted his statement dated 23 March 2023 (part exhibit A1) in which he stated that he had come to Australia when he was 19 years old and had been a father, husband as well as a good citizen of Australia all his life. He loves the outdoors as well as spending quality time with family and friends. He always shares his interests such as hunting, fishing, music, art and photography with them. He had been a responsible firearms owner for over 20 years, but the police had revoked his firearms licence, refusing to renew it.
He has no conviction against his name and there had never been an allegation made against him that was upheld by a court of law. He received the refusal letter of 7 December 2020, in which the information was incorrect and without any further investigation into the correctness of those reasons. He has all the evidence from court to prove that all those allegations were in fact false.
The first set of allegations was from his ex-wife, Ms Lucrecia Borgia (described by the respondent as "Victim 1"). She had decided to obtain a divorce because she no longer wished to be a married woman after 20 years (they had been married at the ages of 20 and 23 respectively). They were both good model Christians, however, and divorce is not permitted except for adultery. In order to obtain permission to divorce, she alleged that he had had an affair, planned to kidnap his son and made threats to kill her. None of her testimony was upheld in court and there was no finding of guilt or adverse finding made against him. At present he and Ms Borgia are on amiable speaking terms and he supports her financially.
His ex-girlfriend Ms Sarah Kwok had made allegations against him that were dismissed by the courts and the related AVO was also dismissed. Ms Kwok had broken into his property to steal a Rolex watch and had fabricated a fake letter from his company to obtain financial benefits. Police had, however, refused to charge her.
Ms Louise Lin, an ex-business associate, through her company had used his financial services licence to conduct a financial services business. Due to a dispute between her and her business partner, their business failed. She eventually incurred a debt of over $60,000. He had never recommended her to invest in anything, let alone a $6 million investment. Her allegation that she stopped paying him because two bikers had tried to collect money from her was completely false and was denied. To date she had never paid the debt and he had since written it off. He was the victim in that matter.
[5]
Applicant's submissions
The applicant relied on written submissions filed on 28 March 2023 (part exhibit A1) in which he argued that the respondent's decision erred in law, denied procedural fairness, failed to consider matters that required consideration and gave inappropriate consideration to irrelevant matters.
The applicant pointed out that not a single charge of any nature had been upheld by any of the alleged complainants and no AVO had been ratified by a court against him. The Commissioner relied on allegations against the applicant from three separate complainants as a basis for concluding that the conduct was "likely" to have occurred, which would be against principles of procedural fairness and usurp the role of the courts to decide each matter on its merits. No court of law had found him guilty of any offence, nor had there been an AVO made against him that had not been revoked.
During the period in which the applicant held his firearms licence, he had never been the subject of any adverse finding by reason of his failure to comply with the licensing regime. This was in itself evidence of good character and a lengthy and ongoing compliance with the statutory requirements should weigh heavily in his favour. He had demonstrated compliance with the strenuous licensing regime, and that was a factor that should demonstrate that he is a responsible and fit and proper person to hold a licence.
No court of law in New South Wales had made a finding that a complainant's fears for his or her safety would warrant the provision of an AVO. It was unfair and procedurally incorrect to attempt to place an onus on the applicant as to the alleviation of fears of three complainants should his firearms licence be reinstated, particularly as no AVO had been made against him.
The respondent had submitted that the reports by the complainants indicated a pattern of behaviour, and because one of the reports was recent, it was not possible to be satisfied that should his current relationship end, that future domestic violence incidents were unlikely. No "pattern of behaviour" had been proven or established. The reference letter from the applicant's fiancée Ms Li also spoke highly of his character. The Commissioner's reliance on unproven allegations was improper, incorrect and most unfair.
In further written submissions (exhibit A2), the applicant stressed that he came to the tribunal with good character and no convictions. He denied that he was in the process of surrendering his firearms to Dave Crittenden, the gun dealer, and says he was advised by police that because of his excellent record no firearms would be seized, as the case had been dismissed in court. All the allegations of 4 March 2010 were denied and were dismissed. When speaking about shooting himself, he had been speaking figuratively and not literally and those comments were thus not indicative of poor mental health.
[6]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[7]
Fit and proper person
The first ground on which the respondent's case was based was that the applicant is not a fit and proper person to hold a licence. Section 11(3)(a) provides that a licence must not be issued unless "the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[8]
Domestic and other incidents
The applicant's conduct was the subject of at least 18 reports to police between 2010 and 2019 which resulted in six AVOs and a criminal charge, all of which were either dismissed, expired or revoked. The applicant has denied the allegations giving rise to all the AVOs and the criminal charge. Some of the reports deal with more than one incident. A selection of the reports may explain the concern to which the applicant's conduct has given rise.
Several of the incidents were reported by his ex-wife, Ms Lucrecia Borgia (Darmali) following the breakup of their marriage of 20 years in 2009, which he says occurred when Lucrecia decided she no longer wished to be married, and she says resulted from his involvement with prostitutes.
The first event report was E 40546228, 4 March 2010 (exhibit R1, pp 20 - 27) in which she said that he had made numerous threats to kill her and kidnap or kill the children, giving her serious concerns that he would carry out those threats, which had become more frequent and vicious since the separation. He allegedly told her that he would pay for someone to kill her and the children, so that the murders would never be tied to him.
According to the report he had on numerous occasions threatened to take the children out of the country, and also threatened to kill himself if she obtained custody. He had been emotionally abusing her to take him back and she had been hospitalized twice because of the stress and emotional abuse by the applicant. A PAVO was issued as a result (id., 30) and an interim order on 12 March 2010 (id., 32 - 33). A second IAVO was taken out on 30 March 2010, but revoked on 6 April 2010 (id., 34). The applicant denies all the allegations.
A second series of reports arose from his relationship with Ms Sarah Kwok. Report E55755630, 21 December 2014 (id., 46 - 47) states that on 21 December 2014 the applicant went to Sarah's house at Putney with the intention of resolving an argument that had occurred the previous day. He had a key to the premises and entered the property. When she told him that she did not wish to speak with him, he began yelling at her, she became upset and feared for her safety as the applicant was becoming very emotional as he yelled at her. In a break in the altercation she left the house and telephoned police for assistance.
[9]
Self-harm threat
On 26 July 2010, a social worker at a child support agency spoke to the applicant over the telephone. During the conversation, he stated that he wanted to put a bullet through his own head. He had been suffering from depression and was currently going through separation from his wife and child. The conversation ended soon after. The social worker attempted to call him back, but he did not answer. She contacted police, requesting that they carry out a welfare check on him (report E 41487772, exhibit R1, pp 38 - 39).
The applicant admitted using those words, but said he did not mean the comment literally, but only figuratively. Following that report, the Firearms Registry asked the applicant to obtain a report from a psychologist or psychiatrist about his suitability to hold a firearms licence. Mr Carl Nielsen, psychologist, of Surry Hills, reported on 28 September 2010 that the applicant had not been diagnosed with any condition.
Mr Nielsen had seen the applicant on two occasions and he was not currently taking any medication. In Mr Nielsen's opinion his psychological condition would not impact on his ability to exercise control for the use of firearms. He has the ability to exercise willpower in order to control his physical actions in accordance with rational judgment. He would not put public safety or himself at risk if he possessed firearms (exhibit R1, p 168). There have been no indications of mental health problems since then.
[10]
Traffic record
The applicant has a very poor traffic record extending back to 1994 which includes 16 speeding violations, of which four were in school zones. Many of the contraventions are more than 10 years old and there has been some improvement in recent years. Nevertheless, there have been two recent speeding violations, one in 2019 and one in July 2021.
As a result of those offences, he has received six fine default suspensions, two demerit points suspensions and one exceed speed suspension. In addition, he was issued with 15 notices from the State Debt Recovery Office, 12 demerit point warning letters and four demerit point courtesy letters.
[11]
The references
The applicant tendered 10 character references (part exhibit A1), starting with one from the Hon. Robert Borsak MLC, who wrote on 16 March 2023 that he has known the applicant for over 10 years and has always found him to be of high morals and integrity and one who acts in a responsible manner at all times. Through his involvement with hunting and firearms, Mr Borsak had observed him to handle his firearms in a safe and responsible manner. He is a citizen whose behaviour is upstanding and is a valued and trusted member of the community. He has never breached his firearms licence conditions to Mr Borsak's knowledge and is a person of excellent character and integrity, and a fit and proper person to hold a firearms licence.
The applicant's accountant and business adviser, Mr A F Bell, wrote that he has known the applicant as a client since 2019 and during that time he has proven himself to be of sound mind and character. He had referred various clients of his own to Mr Bell and throughout those dealings he had observed that he had a generally caring and helpful attitude to his clients.
Mr Paul Talons, managing director of Rite Constructions, describes the applicant as a man of high moral character and integrity who would handle any firearms in his possession with the utmost care and responsibility. Mr Talons had worked with him on numerous commercial enterprises and he had always shown great attention to detail and respect for the law. He has deep appreciation for the importance of firearms safety and recognizes the responsibilities that come with owning and using firearms.
Mr Peter and Mrs Beverly Mandalidis have known the applicant for 34 years since he arrived from Indonesia to study English as a single young man. Since then he had grown into a valued and honest citizen of Australia. He had worked tirelessly to improve himself by studying and thus improving his ability to earn an income that supports his family and friends. He is caring and responsible and at all times has shown integrity in the dealings they have had with him. He shares the same Christian faith as they do, which has shaped him to be a gentle and law-abiding person.
Ms Yvonne Ye, director of Unique Investment Holdings Pty Ltd, has been a client of the applicant for more than six years and in that time has come to see that he is a hard-working person who operates with integrity. He always takes responsibility for his actions. She could say with total confidence that he is capable of handling any situations with caring and thoughtfulness.
[12]
Fit and proper person - evaluation
The applicant is a man aged 56 who has two grown children from his former marriage to Lucrecia. He holds a degree of Master of Business Administration jointly from the universities of Sydney and New South Wales. He holds several other qualifications in the field of finance, including an Advanced Diploma of Financial Services (Financial Planning) and a Certificate in Finance and Mortgage Broking.
He has no criminal convictions recorded against him, and no firearms contraventions other than a warning on 2 September 2009 for a 4-month delay in surrendering his firearms after his licence expired. On 5 July 2018 he was charged with stalking or intimidating with intent to cause fear of physical or mental harm, but, as was noted above, that charge was dismissed with a finding of not guilty after hearing at Burwood Local Court on 2 April 2019. Also on 5 July 2018, he was charged with entering enclosed land without a lawful excuse, but no court attendance notice was filed. He has also been the subject of six AVOs, all of which were either dismissed, expired or revoked.
The fact that an applicant has not been convicted of an offence, or has been acquitted, does not mean that the charge is irrelevant to fitness and propriety: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [63]. It is the conduct that is of concern, not the fact of conviction or acquittal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. A person may fail to satisfy the fitness and propriety requirement even if he or she has no convictions: Bilanenko v Commissioner of Police [2022] NSWCATAD 76, [63] - [68].
None of the complaints against him involved any actual physical violence, and indeed Ms Kwok specifically told police that he had never been violent towards her, though she had made several reports to police of alleged intimidating behaviour. His misconduct towards women was more in the nature of intimidating rather than explicitly threatening behaviour.
A disturbing example of that was Ms Louise Lin's 15 November 2015 report that two men, one in a suit and the other a heavily tattooed, ponytailed biker type arrived at her business saying that they came on behalf of the applicant as "collect agents" in respect of a debt they said she owed him. In the ensuing discussion there were no explicit threats of violence, but the meeting was clearly intimidatory and bordered on implicitly threatening. There have been no similar reports since then, but his flat denial of her quite detailed account is unconvincing.
[13]
The public interest
The other branch of the respondent's case for licence refusal is that it would be contrary to the public interest for the applicant to hold a licence. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 July 2023
Parties
Applicant/Plaintiff:
Darmali
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
In relation to his alleged threat to shoot himself in a conversation with a social worker at a child support agency, he was at that time trying to explain to them that he should not be liable for their assessment of outstanding payments of over $13,000 because he was looking after his son James every weekend and had also paid more than $15,000 directly to his ex-wife's bank account. They had, however, insisted that his ex-wife have sole custody of their son and the money that he paid to her account was classified as a gift to her, not child-support.
Consequently, as a figurative expression made out of frustration, he said that he "Felt like shooting myself in the head", not meaning it literally, but they had incorrectly taken it literally. The point he had been trying to make was that it was like talking to a rock or a brick wall, and his comment was taken out of context.
Eventually he had lodged an appeal with AAP and they had granted him 40 percent custody time. His ex-wife had been lying all these years and claimed 100 percent custody in order to obtain full government benefits, and did not disclose the payments he had made directly to her bank. His son has been living with him for over 1½ years full-time now.
By way of general background he said he has been a good man and Christian since he was 19 years old and had never laid a hand on, or been violent towards, a woman or anyone in his life. All his life he had lived a peaceful and quiet life and strives for peace and harmony. He does not drink, smoke or use illicit drugs, nor does he partake in any activity that is illegal.
Hunting and firearms ownership for him is about recreation and being out with his family and friends. He enjoys hunting because he gets to spend quality time without his mobile telephone or any distractions in the wilderness. In the past, both his son James and his daughter Josephine went out for family hunting trips with him. He also teaches the younger generation about morality, integrity, responsibility and being a good person for the family and community. He believes there was no valid legal ground for revoking his firearms licence. It was an unfair decision discriminating against him personally.
He had never had a single offence or incident where he had not complied with his obligations as a registered firearms holder, and takes those obligations with the utmost seriousness. He is meticulous with adherence to all rules and regulations.
In oral evidence at the hearing the applicant said he worked as a financial planner and adviser, and holds a MBA and several licenses. He is well qualified and currently manages $200 million in funds. There have never been any dishonesty claims against him in relation to his financial services licence.
He has been with his current fiancée, Ms Chu Li for five years now and they have made bookings for their planned wedding on 5 November. He has been an active member of the Castle Hill Baptist church since moving there.
Cross-examined by Mr Winram, he acknowledged that he had received a warning from the Firearms Registry for unlicensed possession of firearms after Ryde police had told him his licence had expired. He surrendered his 6 firearms to a gun dealer, Mr Dave Crittenden in 2009 (event report E 40230285 (id., 19)). He could not recall having received a warning. He acknowledged that he had not promptly surrendered his firearms following the police request to seize firearms dated 15 June 2009 (id., 162 - 163).
With respect to his 18 December 2020 internal review request (id., 155), he said that he and Lucrecia had separated in 2009 and had divorced in late 2010. It was a stressful period and he got upset. Relations were acrimonious between 2008 and 2010.
His comment to the social worker about shooting himself was meant figuratively. He would never consider such a thing, especially as he had two children. Such a comment if made seriously would also have had a bad effect on his firearms licence. At the time he had been very sad and depressed but did not recall whether he had been on medication at that time. He denied having made other suicide threats in relation to custody of the children. He could not recall whether an AVO to protect her and the children had been issued.
An AVO had been taken out on 30 March 2010, and had been heard at Parramatta Local Court on 28 July 2010. The AVO had been revoked. In relation to the hearing at Burwood Local Court on 2 April 2019 of the charge that the applicant had intimidated Ms Kwok with the intention of causing her to fear physical or mental harm during the period 9 April 2018 to 16 May 2018 (exhibit R4), He said that on 2 April 2018, on Easter Monday, she had broken into his house and stolen a Rolex watch.
At the hearing, however, the magistrate had rejected his allegation that she had broken a window, but he could not recall exactly what she had said. He had not seen Ms Kwok entering the house, but he had been looking after her dog Happy in his house and the dog was gone. She had no key to that house. He had told her that the dog was at the veterinarian's because it had been hurt, although it was at the house, in the laundry. They had had a fight and he had taken the dog to the veterinarian but did not want her to worry.
He agreed that the magistrate had said he was not a satisfactory witness, and that he had lied to Ms Kwok and that he was "not honest in the witness box about his work associate" (Ms Li) (exhibit R4, p 4). He agreed he had said no findings of dishonesty had been made against him, but acknowledged that the magistrate had said he had lied, and was not honest in the witness box, and that he was not a witness of truth (id., 6).
He said he could not recall Ms Kwok saying on 20 December 2014 that she wanted to leave home, or that following an argument she had called the police on that day. In relation to event report E 55755630, 20 December 2014 (exhibit R1, pp 46 - 47), he agreed that he had gone to her house in an attempt to resolve an argument that had occurred between them on the previous day. In the process he had yelled at her from the footpath outside her house, but could not recall the details. They had both had keys to each other's houses at the time, although when he had moved to Castle Hill she did not. He had not entered her house.
He had gone to her address to ask her to return his watch, but she had asked him to leave and had called the police, but he had not gone inside. He had not reported the loss of his Rolex watch to police until a month after the incident, when he said that on 3 April he had returned home and found the bathroom window on the ground floor smashed. When asked by police why he had waited so long to report the matter, he stated "I have been busy".
There had been many text messages exchanged between him and Ms Kwok, to whom he referred by her Chinese name, Asuen. They would text each other morning and evening during their relationship. He had sent the text messages in exhibit R3, p 39, but did not think he had sent the one dated 29 April 2018 with a picture of the singer Diana Krall from a record titled "Don't Dream It's Over". He could not recall whether he had parked his Mercedes class E outside her house at Lindfield on 7 May 2018 (event report E 67760150, exhibit R1, p 74), nor following her when she was walking her dog and asking her if he could speak to her, nor whether he had said he had a business meeting in the area (although he was casually dressed), and she had refused to speak to him.
In re-examination he agreed that he had approached the psychologist Mr Nielsen for a mental evaluation following his comments about self-harm. There had been several PAVOs and IAVOs against him, but he had not committed any breaches of them and had lodged appeals. There had been no AVOs in connexion with his current partner.
The applicant also relied on a number of character references, the contents of which are outlined below.
The allegations made by Ms Lin were false and no negative finding had been made against him. All Ms Kwok's allegations against him were denied, and the applicant maintained that she had stolen his watch and he had asked her to return it. The charge of stalking/intimidation made against the applicant at Burwood Local Court had been dismissed and the AVO issued was also dismissed on 19 November 2019 at Parramatta District Court.
The applicant's driving history was irrelevant and a vexatious attempt to smear his character on the basis that he does not have a perfect driving history. Any violations of the road traffic legislation did not enliven any reasons to find that he is not a fit and proper person to hold a firearms licence. After his firearms licence had lapsed and he received a warning, he had subsequently renewed his licence and rectified the issue.
In oral submissions at the hearing Mr Kulisiewicz reiterated those points, pointing out that his client had been charged only once and the charge had been dismissed. Even if he had been found guilty, he could still obtain a licence. The case-law showed that a person who is of good character is less likely to offend and there is a presumption that such a person's evidence is truthful. There had been no permanent AVO issued against him. While he had undergone a tumultuous period in his life, he had now been in a stable relationship for five years and there were no allegations or charges during that period. He has two children and is active in the local community and church. He is managing director of a fiduciary company, working in a position of trust.
He had his firearms licence for 20 years, and had one warning letter, long ago. Webb v Commissioner of Police, NSW Police Service [2004] NSWADT 110 had explained that the tribunal in such cases was to take a balanced view of risk, and in this case there was no evidence of risk before the tribunal. His difficult romantic life was now behind him and there were no tangible risks to the public. He was a fit and proper person to hold a licence.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22]. Safety, of course, includes the safety of the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117;
He had followed her, and a couple driving along the street saw an emotionally upset Sarah walking on the footpath and the applicant walking some distance behind her. They stopped to check on her welfare, whereupon the applicant turned around and walked back to the house. Sarah told police that the applicant had never been violent towards her and all she wanted was for him to understand that the relationship was finished and he should stop coming to her house. The two were work colleagues and worked together on a regular basis. As both parties had keys to each other's houses, police arranged for the keys to be returned. The applicant agreed to leave the premises and was warned not to return.
Report E 67760150, 16 May 2018 (id., 72 - 85) details several incidents. One occurred on 9 April 2018 when Sarah was having breakfast alone and without notice saw the applicant standing in her dining room uninvited. He said he wanted to say happy birthday, and she asked him to leave, otherwise she would need to call the police. He refused to leave the house and along with the fact that he had arrived unannounced, this caused her to become frightened, to lock herself in her bedroom and call the police. When they arrived they saw him outside at the front of the house. After that incident Sarah did not hear from him for about two weeks.
After she had moved house on 16 April, she received a text message from an unknown number stating "I find you again. I hope Nemo [her pet bird] and Happy [her dog] are well…. Can't stop thinking about Asuen", her Chinese name, which was not used by anyone other than the applicant. She blocked the number. Subsequently she received a number of other texts from unknown numbers, including the one with the link to the song "Don't Dream, It's Over" by one of her favourite artists, Diana Krall. On 2 May she received another call from a blocked number, which was the applicant saying, "I want to be with you". She had told him not to call her anymore or she would go to the police. He then replied, "You are threatening me, if you do that we will go down together". Police subsequently told the applicant to stop contacting Sarah.
On 7 May 2018 when she was walking home, she noticed his car, a Class E Mercedes, parked outside her house, with the applicant in the driver seat. She asked him why she was there, and he said he had a business meeting, but he was wearing very casual clothing. He again asked her to have a chat, to which she replied "No" before walking away. He began to follow her for a short distance before returning to his car. His actions caused her to fear for her safety, leading her to run away from him as fast as she could. She called police on arriving home.
Senior Constable Rebecca Foster's statement dated 12 June 2018 (part exhibit R3) states that on that date she attended Sarah's Lindfield address following a message about domestic and harassing calls. Sarah said to the attending officers, "My ex-boyfriend won't leave me alone. I have blocked his number. He is now calling me from a private number". She showed the officers her mobile telephone which showed several calls from a private number, along with several texts. She explained that she had spoken to police about the matter and after they call him, he stops contacting her, but then a few weeks later he would resume. "It's affecting my life as I am missing some calls such as the police one as I think it is him calling me so I don't answer. He came into my house once uninvited. It gave me a fright to turn around and see him in my dining room. It scared me". She had locked herself in her room and called 000. He stopped calling her after police spoke to him, but resumed calling and messaging her about two weeks later. She made a formal statement to police dated 16 May 2018 (part exhibit R3).
After detailing the incident about her dog being taken to a veterinarian for treatment for an injury, the statement describes the incidents outlined above and concludes, "I am feeling scared of David's behaviour as I feel it is getting worse and I am worried what he may do to me. It is affecting my life as I am constantly worried and wondering if he is following me or going to call me despite me blocking his numbers. I don't want to answer private numbers in case it is him, however I then miss other calls by not answering, such as the call I missed from Leading Senior Constable Spencer" (id., 36 - 37). She mentioned a conversation with a Constable named Natalie from Castle Hill police station: "We had a conversation about David suspecting me of taking something from his house. I told her that I took my dog back and that was it". Neither Ms Kwok nor S/C Forster was required for cross-examination. The applicant denied all Ms Kwok's allegations, describing some as "frivolous and vexatious". He reiterated his claim that she had stolen his Rolex watch and he had asked her to return it (exhibit A2).
On 30 July 2018 the applicant was charged with stalking/intimidating Ms Kwok and on 2 April 2019 at Burwood Local Court McManus LCM dismissed the charge but issued a 12-month ADVO (exhibit R4), which on 19 November 2019 was revoked by Parramatta District Court.
The final set of allegations about intimidating conduct came from Ms Louise Lim, who had been paying $10,000 a month to the applicant to manage funds and make investments for her since February 2014. He had introduced her to a developer named Victor Fong to organize for an investment of $6 million for a development in which Mr Fong was involved. It failed and the latter's company went into liquidation. Ms Lin was trying to recoup her $6 million, as she had since discovered that the documentation and contracts did not cover her for that kind of situation, though she had believed they would. She ceased paying the $10,000 per month in January 2015, as she did not feel the applicant had done his job. He ceased his services in August 2015 (report E 59213014, 15 November 2015, exhibit R1, pp 51 - 52).
She reported that on 13 November 2015 two men had attended her business, one of them described as a Caucasian wearing a suit, the other as a muscular Caucasian with long brown hair, a ponytail and a tattoo running down both arms. She described him as a biker. The man in the suit said, "I am a collect [sic] agent, acting on behalf of Mr Darmali for the dispute about $100,000". She told him of the situation and said that if the applicant wished to sort the issue out he would have to go to court.
He replied, "We don't want this shit. We don't want to deal with lawyers, Courts and all this bullshit. I am the mediator, come to solve the problem for everyone. Are you sure you don't want to come up with anything? You look like quite [a] decent lady to me, but why would Mr Darmali to collect debts [sic] when you are not owing anything." She replied, "Maybe Mr Darmali thinks I'm a girl." There had been no further contact or threats from the applicant since then. The applicant denied the allegations without comment (exhibit A2).
The applicant's son James Darmali writes that his father has been a guiding light through his growing years, his role model and best friend. He is passionate about fishing, hunting, photography and outdoor nature activities. He always took James out fishing and hunting since he was little. With his guidance and supervision James had got his junior firearm licence when he was 14 years old. His father had always taught him to handle firearms in a safe manner, to be responsible and obey the law. He really hopes his father can retrieve his firearms licence so they can go on hunting trips together in the future.
The applicant's married daughter Mrs Josephine Bolluk, now aged 30, has a background in human resources, with a focus on recruitment. Her father had always been a source of inspiration and strength for her. He is a man of great integrity was honest, trustworthy and dependable. He lives his life according to the Christian values he holds dear. He has always been an excellent role model. He has always kept his word and his actions speak louder than his words.
The Rev. Ian Deane, senior pastor of Castle Hill Baptist Church, has known the applicant over a number of years as a faithfully attending member of the congregation. He had observed him to be a man of stable character with a clearly defined value system, which he lives out with responsibility and consistency. That was observable from his willing obedience to the laws of the land. He is a man of sober habits who refrains from using any addictive substances. He is reliable and in control of his emotions at all times, is friendly and gets on with people. Mr Deane had never observed him acting impulsively, nor with aggression towards any person.
The applicant's fiancée Ms Chi Li states that it is a blessing for her to have the applicant in her life as her future husband. He is a loving, caring and truly trustworthy partner. All the family members and friends around him love him and respect him. He has two children with his ex-wife and is a good father who is always there for his children. He is a good son as well, always visiting his mother and cherishing his time with her.
From everyday observation during their 5-year relationship, she has found him to be gentle and responsible. He holds fast to his moral (sic), never gives up when facing difficulties in life and always treats elders and women with a respectful attitude. There was not even a single event that he is rude or violent to anyone. He is a practising Christian who is kind and goodhearted, is involved in charity work and has made a great contribution to the local community. She hopes he can recover his firearms licence and enjoy his hunting trips with his friends and family.
Mr James Okkerse, of MDS Enterprises, has known the applicant for over five years and has had the pleasure to interact with him, primarily looking over many property transactions. He is an honest, hard-working man who always has a high level of integrity, which is why Mr Okkerse enjoys interacting with him personally and professionally.
As David has many years of experience within the investment banking space, it is common to see individuals in that sector who are patient and disciplined, which, Mr Okkerse says, is exactly what he has seen from David over the years.
None of the applicant's intimidating or threatening behaviour involved threats to use firearms, except for the threat, which he said was not meant literally, to shoot himself during his telephone conversation with the social worker.
The respondent cited Thomas v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 202 which concerned a decision to impose a firearms prohibition order. The tribunal found that the applicant was not a fit and proper person. The fact that his relationships resulted in "provisional or interim apprehended violence orders for the protection of his partners" was considered to be a relevant factor in making that finding (at [32]).
Those remarks apply to the present case, and it may be noted that some of the orders are relatively recent, including one in April 2019. The applicant submitted that all the reports arose out of a turbulent decade in his personal life and that there had been no such incidents in the five years since he began his relationship with his fiancée, whom he has made plans to marry in November. In light of his history, however, one cannot confidently exclude the possibility that at some future time the stresses and strains of life could trigger a recurrence. Past conduct is a significant guide to likely future conduct: Cooper v Commissioner of Police [2022] NSWCATAD 195, [60].
Although there is evidence of self-harm threats in relation to custody during the breakup of his marriage to Lucrecia, I accept his explanation that in his conversation with the social worker he was speaking figuratively rather than literally. Nevertheless, the social worker thought it seemed serious enough to warrant informing the police, and in any case a licence holder should never threaten to use firearms against any person, including himself, even rhetorically.
As a result of that threat he was required to obtain an evaluation from a psychologist or psychiatrist, and did so, obtaining a report that he was not suffering from any mental health problem and was capable of handling firearms in a safe and responsible manner. There have been no reports suggesting any indications of mental health disorders since then. He also has no history of alcohol or drug abuse.
His traffic record dating back to 1994 is very poor and includes 16 speeding violations, including four in school zones, but none of the most serious contraventions such as manner dangerous, negligent driving or high-range PCA, but it has earned him nine suspensions and 15 State Debt Recovery Office notices, 12 demerit point warning letters and four demerit point courtesy letters. Mr Kulisiewicz submitted that his traffic record was irrelevant and nothing more than an attempt to smear his reputation.
In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, however, the tribunal noted that the applicant's traffic history showed a disregard for public safety and his own safety as he repeated traffic offences. Scahill SM pointed out that "The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety" (at [81]).
The Appeal Panel in Masterson v Commissioner of Police [2017] NSWCATAP 206 stated that:
In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter and exercising a discretion to revoke a licence on public interest ground. As stated above, the test is very wide and in matters of public safety in the possession and use of firearms, it could hardly be suggested to the contrary" (at [133]).
While the applicant's record may not rise to the level of in itself justifying licence refusal, and there has been some improvement in recent years, the record as at 12 December 2022 does show speeding violations in 2019 and 2021 and a long-term inability or reluctance to learn from his mistakes. It indicates a propensity to disregard a legislative scheme aimed at protecting public safety and does not assist his case.
As against that, his 20-year record as a firearms licence holder is unblemished except for a warning letter after his delayed surrendering of his firearms after his licence had expired, a clear but not directly dangerous contravention. He has tendered ten highly supportive references from persons in various walks of life, including a Member of the Legislative Council (though two of the references from his children and one from his fiancée). On the face of it, he makes a case, though a tenuous one, on the issue of fitness and propriety.
The comments of McManus LCM at his trial for allegedly intimidating Ms Kwok (R v Darmali 2018/00153731, 2 April 2019) cause concern, however. The magistrate found that over the 2018 Easter weekend, Ms Kwok had known that the applicant had a woman staying at his house, who the applicant described as a business associate from Melbourne. The woman was Ms Chu Li, who is now the applicant's fiancée, who stated in cross-examination that she had not been in an intimate relationship with the applicant, but that it had been a business relationship at the time of the Easter weekend.
She explained that he was the only client she saw when she visited Sydney, and the rest of the time she spent sightseeing. The magistrate did not accept her explanation that she was on a business trip and found her to be a partisan witness. Her Honour found her evidence about being there purely on a business trip and that the other client she intended to visit was unavailable unbelievable, given that it was the Easter long weekend when people do not work,
Further, the magistrate "did not find Mr Darmali a satisfactory witness. I note that he lied to Ms Quoc [Kwok] about Happy being at the hospital. He lied about being home at work all day on the Monday. And I find that he was not honest in the witness box about his work associate [Ms Li]. He was in my estimate, an unimpressive witness". Later in her reasons, the learned magistrate repeated her assessment: "As already stated, I do not consider Mr Darmali to be impressive witness, nor a witness of truth".
In cross-examination the applicant explained that he had lied to Ms Kwok about the dog's whereabouts because he did not want her to be worried about her, which is not inherently implausible. That still leaves her Honour's other conclusion: "I find that he was not honest in the witness box about his work associate. He was in my estimate, an unimpressive witness". She later reiterated that conclusion, saying he was not a witness of truth. That opinion was largely based on her Honour's rejection of his and Ms Chi's testimony about the nature and purpose of her visit to the applicant in Sydney. It is of course possible that other facts and circumstances that were not before the Local Court might have supported his account. But no evidence of any such facts or circumstances was before the court or this tribunal.
As the applicant's case for being granted a licence is in other respects quite marginal, it is not easy to see how a tribunal could make a positive finding that a person is fit and proper to hold a licence when the record includes a clear and categorical statement by a court in a criminal case that he is not a witness of truth. As was noted above, s 11(3)(a) requires the Commissioner, or on review this tribunal, to reach a positive state of satisfaction that an applicant is fit and proper to hold a licence: EHB v Commissioner of Police [2021] NSWCATAP 63, [45]; Vaccarella v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 147, [176]. On the evidence before the tribunal I am not satisfied that the applicant is a fit and proper person to hold a firearms licence.
For the reasons given above I am not satisfied that the applicant has shown himself to be a fit and proper person to hold a licence. In such circumstances, even though he has a good safety record with firearms, it could not be in the public interest at present for a licence to be issued to him, and I so find the decision under review should be affirmed.